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Blurred lines: managers may have right to bargain collectively

In several jurisdictions across Canada, the issue of the unionisation of managers and supervisors is contentious. In many cases, unionisation is restricted to 'employees', a definition from which managers are excluded. In the province of Quebec, the exclusion is based partly on the potential for conflicts of interest in having managers collectively bargain their own conditions of employment.

In two surprising decisions, the Quebec Administrative Labour Tribunal has questioned the constitutionality of this managerial exclusion under Quebec's Labour Code. While the decisions stem from an administrative tribunal and have yet to make their way to various appeal processes available through courts, they could have ramifications in other provinces.

Facts

In 2009 the Association of Executives of the Society of Casinos of Quebec sought to be certified to represent first-level managers from the gambling section at the Montreal Casino. In 2014 the Professional Association of Hydro-Quebec Senior Level Officials filed a similar petition with regard to Hydro-Quebec's first-level managers.

The tribunal was asked to rule on whether the code's exclusion of managers infringed the freedom of association guaranteed by Canada and Quebec's Charters of Rights and Freedoms and, if so, whether this infringement was justified.

Decision

The tribunal first held that the exclusion of managers had serious prejudicial effects. Notably, the applicant associations were denied habitual protection against anti-union discrimination, interference and hindrance from employers.

The tribunal found that this exclusion also affected the managers' capacity to bargain their conditions of employment collectively. The imbalance in their bargaining power made it impossible for them to negotiate important conditions of employment effectively.

Absence of justification According to the tribunal, this serious interference with the freedom to associate is not justified in a free and democratic society. Excluding managers from the certification regime has no rational connection with the underlying objective of maintaining loyalty and preventing conflicts of interest, particularly given that some managers are actually unionised in the federal jurisdiction, even in Quebec.

Indeed, under the Canada Labour Code, employees whose duties include the supervision of other employees may be unionised and supervisory employees are even allowed to be in the same unit as that of the employees they supervise. The tribunal specifically acknowledged two associations of managers that had been voluntarily recognised by their employer.

Finally, the exclusion of managers failed to account for the different management levels that may exist within an organisation. The infringement could not be considered minimal, and the tribunal ultimately concluded that the exclusion infringed on the freedom of association of managers and declared the relevant section inoperative in their regard.

Comment

These decisions are nuanced in a way that may not be immediately apparent. For one, the tribunal's decision did not broadly invalidate the exclusion under the code, but instead invalidated it solely for the managers aimed by the specific petitions for certification of these cases.

Second, the particular facts of these cases cannot be overlooked – the employees were first-level managers in a state corporation with five or more management levels. This does not reflect the reality of most Canadian businesses and corporations. For example, for many private-sector employers, first-level managers are the eyes and ears of upper management on the floor, which distinguishes them from the corporations in these cases.

It will nonetheless be interesting to monitor any legislative and jurisprudential impact of these decisions.

This update was reprinted with permission from Northern Exposure, a blog written by lawyers in the labour, employment and human rights group at Fasken Martineau, and produced in conjunction with HRHero.com.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide.Register for a free subscription.

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